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Thursday, July 09, 2009

Puzzles and Prescriptions

When I was first preparing to go on the teaching market, a wise elder told me that all law papers had to answer the question “what should I do”? In other words, she said, the sine qua non of a legal academic paper is that it must conclude by stating some normative prescription. This comes as a surprise to no one, I suspect. After all, the point of our writing (I think most lawprofs would say) is to identify some problem in the law, and then to make some claim about how it can be made fairer, or more efficient. And I’d wager that the strong majority of law papers conclude with some kind of prescription about how the world should be. There are so many examples that I don’t feel it’s necessary to provide one.

Later, though, I spent a couple years as a fellow at an august institution in a cold, gray part of the Midwest, and noticed that many of the faculty there took a very different approach to what law papers should be. The idea was to start with some puzzle in the law, and then find a novel and convincing explanation for it. Why does a strong state like the U.S. enter into binding international agreements rather than opting for negotiation regimes? Why do laypeople continue to believe that property rights are nearly absolute when lawyers and law scholars have emphasized the limited nature of ownership since (at least) the advent of legal realism? Why are we bothered by non-negotiable boilerplate provisions when so many other aspects of sold products are hidden or otherwise stacked against consumers? Thesolutions to these puzzles may lie in game theory, or law and economics, or behavioralism, but regardless of the particular answer, the goal remains the same: to develop a convincing and parsimonious explanation that shows how these seeming contradictions can be resolved.

I find both puzzle and prescription papers valuable and interesting, and each of them has a place in my past and current writing agenda. My sense, though, is that the puzzle paper gets short shrift in the mainstream legal academy, where the normative prescription is king. Below the fold, I say a few words in praise of the puzzle paper, and (perhaps more provocatively) why answering the question “what should I do?” need not be the sine qua non of legal scholarship.

First, while the puzzle paper is the exception rather than the rule in legal academia, it’s more the norm in many (perhaps even most) other fields. I recently chatted with a friend who did graduate study in physics and her take was that there are really only two kinds of papers in science: those that seek to propound a theory explaining some phenomenon, and follow-on papers seeking to amass evidence proving or disproving that theory (e.g., Einstein’s theory of relativity and the body of work following that showed its validity). In an elemental sense, this is the goal of scientists: to explain how the world (or their chosen slice of it) works. And this puts into perspective the function of puzzle papers in our field: they seek to help us more fully understand why the legal world is the way it is.

Moreover, puzzle papers often seek not only to resolve the particular dilemma they identify, but to do so by showing how a particular theory about the law does the best job of providing an explanation. By showing that [choose one: L&E, behavioralism, Foucauldian power theory] best resolves a given contradiction in the law, you have provided some evidence that the operative theory is a good one because it has lots of explanatory leverage. I often think that this is often the major punch of puzzle papers; they exist not only to help us understand an otherwise unexplained phenomenon, but more so as an object lesson in why the writer's chosen worldview is the best way to understand the domain of law.

Colleagues who have expressed skepticism about the relevance puzzle papers typically suggest that they are academic exercises in the worst sense of the phrase: they seek merely to propound an answer to a question that lacks any meaningful practical implications. After all, one of the main draws of legal scholarship is that it’s not mere navel-gazing; the insights of a given paper may trickle down to actual lawyers, judges, or policymakers, and affect the way they interpret or apply the law. This is certainly possible, and indeed happens all the time, but on the other hand, the downside of prescriptive papers is that they invariably rely on contested visions of the good life that may render their outcomes hopelessly indeterminate. You don’t have to buy Pierre Schlag’s extreme version of this argument to be skeptical that prescriptions are invariably based on so many debatable empirical assertions and methodological predispositions that the answer to “what should I do?” often seems to rest on foundations too shaky to be universally convincing.

Related to the above, it may be that the title of this post may set up a bit of a false dichotomy. Puzzles and prescriptions may not be entirely mutually exclusive. Take Douglas Baird’s “The Boilerplate Puzzle”, for example. It starts off as an attempt to explain why non-negotiable form warranties bother legal scholars when other non-negotiable features of consumer purchases do not, but ends up making a number of practical suggestions for better ways to approach the concerns raised by boilerplate agreements (e.g,. addressing underlying anticompetitive conduct by sellers, or considering substantive policies about what kinds of transactions require knowing waivers) than categorically not enforcing adhesory contracts. This is just one example of how resolving puzzles may lead to prescriptive suggestions.

Finally, I realize that not all law papers fall into the puzzle or prescription categories. There are purely descriptive papers that seek to empirically test factual propositions about the world (though many of these papers produce normative prescriptions about how law should work based on their findings). Some work also simply tries to answer questions about how law’s categories should be constructed. One of my favorite such debates concerns the meaning of property, with advocates of a narrower, exclusion-oriented vision of property (Merrill & Smith, Penner) pitted against those who prefer a more capacious understanding of the term (Munzer, Singer).

As I mentioned above, I find both puzzles and prescriptions interesting and useful, albeit for different reasons, and they each have a place in my overall writing agenda. My sense (based only on casual empiricism) is that the puzzle paper tends to be underappreciated, and sometimes unfairly maligned, among law profs. The point of this post has not been to suggest that the puzzle paper is a superior kind of work, but merely to say a few words in defense of why I think it should be given equal dignity with the prescriptive paper in the legal academy.

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Comments

Analysis is probably the wrong word; it jumped to my mind as the opposite of synthesis but it's not literally what I meant. What I had in mind was finer-grained histories based largely on primary sources vs. "syntheses" as that term is used in history, i.e. less fine-grained histories built from a number of secondary sources. In general, what strikes me as possibly similar here is the distinction between direct accounts and meta-level explanations drawn in a number of fields. "Puzzles" seem to me to be meta-accounts, i.e., in part they are accounts of how legal scholars and lawyers have arrived at their accounts.

Dan, you're 100% right that puzzles and prescriptions can be equally agenda-driven (like any writing, I suppose). I think there may be more determinacy in propounding an explanation for a phenomenon than suggesting an ideal future outcome, though, because the explanation for a puzzle has to be analytically plausible (although reasonable minds can differ substantially about what amounts to a plausible explanation, so this distinction may not do much work).

Bruce, I'm not sure the distinction I've created tracks analysis/synthesis. Coming up with a novel account for a seeming puzzle isn't simply a matter of describing the world but also requires a theory to provide explanatory leverage. The work I think of as falling into the analysis category (e.g., textual explanation in history or thick description in anthropology) is really just a matter of giving a thorough reading of a phenomenon, which isn't quite the same. (Though if I'm misunderstanding what the analysis/synthesis distinction is about, please let me know.)

Jeff, I think you're really on to something with this "two oughts" theory. I often wonder whether the fact that we're all trained as lawyers (though we may not actually be lawyers, see my post from earlier this week) may foundationally change how legal scholarship operates. Certainly there will always be a degree of advocacy and agenda-pushing in any academic fields, but these forces seem to me to detract from the kind of pure inquiry that we should be engaging in. Perhaps my (possibly naive) belief in the possibility of pure inquiry is what makes me relatively more enthusiastic about puzzles (and relatively less interested in prescriptions) than the average lawprof.

Posted by: Dave | Jul 10, 2009 1:51:42 AM

Be very careful in starting down this path of meta-thinking. You don't want to do it at home.

There's a lot of thinking out there, to which the legal academy, because of the very reluctance to engage in that non-prescriptive thinking, simply doesn't engage. If you don't watch yourself, you could be soon engaged in (ssssh!) . . . metaphysics. And there's a whole tradition of jurisprudes from Williston to Hart to Posner that considered that kind of exercise in pure thought a utter waste of time.

To my mind, what most ALL law professors do is solve puzzles. Very few ponder mysteries. (That is a distinction offered up by the French existentialist Gabriel Marcel.) Start to unpeel what you mean by descriptive and normative in the context of law as, what, social science? Consider the issues of trying to separate out the descriptive and normative in physical science, much less social science, much less the strange antinomial exercise between truth and advocacy that is most of the practice of law. A week or so ago I posted this:

My [hedgehog idea] (such as it is) is placing the canard "thinking like a lawyer" into the broader category of how people make sense of the world. (This comes, I think, from spending so much of my professional life as a lawyer not surrounded by other lawyers.) Nothing provokes this kind of reflection like great calamities, whether they are oceanic or financial tsunamis. In a nutshell, the question is how we assess what happened against two very different kinds of "oughts": (a) the normative "ought" of our sense of the way a just world should work, and (b) the descriptive "ought" that a scientist imagines when she comes up with a hypothesis of explanation that has yet to be borne out by experiment. My working thesis is that thinking like a lawyer - somewhere between advocacy and truth-seeking - gets this all jumbled up. What lawyers do mostly is look backwards and assess cause-and-effect in a particular way, and make implicit (and not necessary correct) assumptions about predicting the future from what happened in the past. To put it otherwise, my hedgehog concern deals with difficulties in forward-looking judgment, namely, the difference between looking backward and assessing causation as a matter of attributing blame, and understanding what is going on as a descriptive matter sufficient to make a good forward-looking decision in real time under conditions of significant uncertainty.

Posted by: Jeff Lipshaw | Jul 9, 2009 5:28:19 PM

Dave, great post. I hadn't considered it before, but I think I'm more drawn to puzzles than prescriptions. One quick thought: the distinction you draw here reminds me of the distinction in other fields between analysis and synthesis, or experiments and literature reviews. Both have their place, but my impression is that the latter, secondary types of work are falling out of favor in other fields too. Possibly law is just mirroring this trend.

Dave, great post, as usual. Since I know I am one of the unstated targets of opposition (it is true that I have sometimes muttered "who cares about puzzles" at various Pfests in response to "explanatory" papers), I should say one thing in defense of my ostensible know-nothingess. The frustration one feels with prescriptive/normative papers I think is also easily felt in the context of the puzzle papers too; specifically, very often the authors of the puzzle papers propound one solution (usually driven by one favored methodology) to the puzzle when it seems like there are strong reasons to reject monocausal explanations because the world is complex, yada yada, and multiple factors are in play at explaining the thing (doctrine, institutional arrangement, etc.) to be explained. That's not always true of course but it's a possible reaction that might explain the boredom with or skepticism toward puzzle papers. The normative papers are also more likely to be alluring because of the comparative advantage we think lawyers have in forward-looking institutional design as opposed to backward-looking investigation. Of course, that's just an explanation, and not a justification!